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2017 DIGILAW 46 (ORI)

Kalpana Singh v. Mritunjaya Singh

2017-01-06

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. Heard Mr. Laxman Pradhan, learned counsel for the petitioners and Mr. Ashutosh Mohanta, learned counsel for the opposite party no.1. 2. This revision petition has been filed by the petitioners challenging the impugned order dated 06.08.2016 passed by the learned S.D.J.M., Panposh, Rourkela in I.C.C. Case No. 20 of 2016 in rejecting the petition filed under section 205 of Cr.P.C. for dispensing with their personal attendance. 3. The opposite party no.1 is the complainant in the case. The complaint petition was filed on 19.01.2016 against the petitioners relating to the incident stated to have been taken place on 20.11.2015 and 22.11.2015. 4. There is no dispute that the petitioner no.1 is the sister, petitioner no.2 is the brother-in-law (husband of petitioner no.1) and petitioner no.3 is the mother of the opposite party no.1 Mritunjaya Singh. It appears from the complaint petition that there was civil dispute between the parties for which the incident in question took place. 5. The learned Magistrate has been pleased to take cognizance of the offences under sections 341, 323, 449, 504, 511 read with section 34 of the Indian Penal Code. On receipt of the summons, the petitioners filed a petition under section 205 of Cr.P.C. for dispensing with their personal attendance. The learned S.D.J.M., Panposh came to hold that the offence under section 449 of the Indian Penal Code is exclusively triable by the Court of Session and the allegations are extremely serious in nature and therefore, the personal attendance of the petitioners is very much required during trial and accordingly, rejected the petition. 6. Learned counsel for the petitioners while challenging the impugned order contended that since the parties are related to each other and due to previous civil dispute between the parties, the case has been instituted and the petitioner nos. 1 and 3 are ladies and the petitioner no.2 is the Government servant working as CRCC under the Education Department, Jharkhand and it would be extremely difficult on their part to appear before the concerned Court. He further submitted that the petitioners are ready and willing to appear before the learned Magistrate as well as before the learned Trial Court as and when necessary and therefore, the personal attendance of the petitioners may be dispensed with. 7. He further submitted that the petitioners are ready and willing to appear before the learned Magistrate as well as before the learned Trial Court as and when necessary and therefore, the personal attendance of the petitioners may be dispensed with. 7. Learned counsel for the opposite party no.1 on the other hand contended that since one of the offence under which cognizance has been taken is exclusively triable by the Court of Session and prescribes punishment for life imprisonment, it would not be a proper to dispense with the personal attendance inasmuch as the presence of the petitioners would be necessary at the time commitment to the Court of Session as well as at different stages of the Sessions Trial. 8. Law is well settled that the personal appearance of the accused in a criminal trial is the normal rule and exempting from personal appearance is an exception which can be resorted to in suitable cases by due exercise of judicial discretion. When the alleged offence involves moral turpitude, relates to grievous offence or prescribes considerable length of substantive sentence, the Court exercising the discretion shall take the total facts and circumstances into consideration and exercise the discretion judiciously by a speaking and reasonable order. It is also settled principle of law that in case of Pardanashin lady, old and ailing or infirm person or a Government servant or businessman, if the Court feels that appearance on each date would cause great hardship, the Court should favourably consider the case keeping in view the totality of the circumstances. 9. Considering the submissions made by the learned counsels for the respective parties and taking into account the averments made in the complaint petition and the provision under section 205 of Cr.P.C., since the case arises out of a family dispute, the petitioners nos. 1 and 3 are ladies and petitioner no.2 is a Government servant, keeping in view the nature of accusation made in the complaint case, I am of the view it is a fit case where the personal attendance of the petitioners should be dispensed with. 10. Accordingly, the impugned order dated 06.08.2016 passed by the learned S.D.J.M., Panposh is set aside. 10. Accordingly, the impugned order dated 06.08.2016 passed by the learned S.D.J.M., Panposh is set aside. The learned S.D.J.M., Panposh shall dispense with the personal attendance of the accused-petitioners on giving undertaking by them to the satisfaction of the Magistrate that the counsel on their behalf would be present throughout the proceeding and that petitioners shall have no objection in taking evidence in his presence and further that they would attend before the Court at any stage of the proceeding as and when their personal attendance is required by the Court. 11. It is needless to say that since the case is triable by Court of Session and the commitment procedure has to be followed, it is directed that the petitioners shall appear in person before the Magistrate on the date of commitment as well as on the date of first appearance before the learned Trial Court so also on the date of framing charge, the date of recording of the accused statement as well as on date of pronouncement of the judgment. 12. The learned Magistrate shall expedite the commitment the case and after commitment, the learned Trial Court shall do well to dispose of the trial as expeditiously as possible preferably within a period of six months from the date of framing of the charge. 13. With the aforesaid observation, the revision petition is disposed of. Urgent certified copy of the order be granted on proper application.